Ahmed Intizar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 163/2018

[2019] HKCFI 1766

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 163 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;     or
	consideration of the documents and the Applicant being present / absent in open court;

Order by Deputy High Court Judge Bruno Chan:

This second application by the applicant for leave to apply for judicial review of the Torture Claims Appeal Board’s decision made on 20 February 2017 is hereby struck out and dismissed.

Observations for the Applicant:

1.The applicant is a 34-year-old national of Pakistan who entered Hong Kong illegally on 31 October 2013 and was arrested by police on the same day.  After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by his paternal uncle or his son over a land dispute.  He has since been released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Village Salim Khan, Attock, Punjab, Pakistan where he subsequently worked as a driver and got married with children.

3.His father jointly owned a piece of land in the village with his paternal uncle Suleman who was a wealthy and influential businessman in the village with political connections. After his father passed away, his half share in the land passed to his wife and children including the applicant.  As there was no formal demarcation or boundary separating the respective shares of the two families, and as Suleman often disputed the exact part or portion of the land of the applicant’s family which had led to frequent conflicts between the two families.

4.In 2007 Suleman started to forcibly occupy the land of the applicant’s family by putting his tractor on it, and when he refused to remove his tractor, the applicant made a complaint to the local police who however simply advised him to resolve their dispute privately.

5.To avoid any further confrontation with Suleman, the applicant’s family decided to sell their land, which they eventually did in 2011 to a wealthy man from the neighboring village.

6.After hearing that the applicant’s family had sold their land to a stranger, Suleman became furious and came to the applicant’s home looking for him, and when he could not find him at home, he threatened his mother that he would kill the applicant.  As a result the applicant tried to stay away from home to avoid Suleman.

7.One evening in July 2013 the applicant ran into Suleman and his son on the street when Suleman started to curse at him, and when he pulled out a pistol, the applicant immediately turned around and ran away, and heard several shots firing from behind but he managed to flee from the scene unharmed.

8.After the shooting incident, the applicant fled from his home village to take shelter at various friends’ places in different towns and cities until 23 October 2013 when he departed Pakistan for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 10 September 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

9.By a Notice of Decision dated 18 November 2015 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights (“HKBOR”) (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

10.In his decision the Director took into account all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm from his uncle Suleman and his son to the applicant upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that there is no longer any reason for them to harm the applicant after the disputed land had been sold, that in any event it was a private family dispute without any official involvement that state or police protection would be available to the applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Pakistan with a large population of 196 million people spread across a vast territory of more than 796,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied young man with work experience to move to other part of Pakistan away from his home district in large cities such as Rawalpindi, Chakwal, Talagang or Karachi where it would be difficult if not impossible for his uncle to locate him.

11.By a Notice of Further Decision dated 29 December 2016 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

12.By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 2 December 2015, and for which he attended an oral hearing on 16 January 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 20 February 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

13.In its decision the Board accepted that the applicant may have told the truth about his family’s dispute with his uncle over their land, but found no official involvement in the dispute that state or police protection would be available to the applicant, that in any event since the land has already been sold that there is no longer any reason for Suleman to harm or kill the applicant, and concluded that there is no present or foreseeable risk of harm to the applicant if refouled to Pakistan, and hence his claim failed on all applicable grounds.

14.On 28 April 2017 the applicant filed his Form 86 under HCAL 163/2017 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he put forward various grounds or complaints that the Director and the Board had failed to apply high standards of fairness in assessing his claim, that it was unfair that he was not given legal representation in his appeal before the Board, and that he was not given any fair chance to present his claim for BOR 2 risk.

15.On 26 January 2018 his application came before Deputy High Court Judge Woodcock who after hearing his submission refused his application upon finding none of his grounds reasonably arguable and with no realistic prospect of success in his intended application.

16.The applicant did not appeal against that decision, and instead on 5 February 2018 he filed another Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following new grounds for his intended challenge:

(1)  irrationality in failure to consider the concept of state acquiescence;

(2)  procedural impropriety for insufficient inquiry;

(3)  failure to provide adequate reasons for decision made;

(4)  procedural impropriety/unfairness in failure to investigate into the COI of Pakistan;

(5)  irrationality in failure to place weight on relevant information and/or selectively placing weight on irrelevant information;

(6)  irrationality in failure to consider a consistent system of human rights violation or to consider if state protection exists in Pakistan;

(7)  irrationality in placing weight on irrelevant matters or on inaccurate or incorrect facts;

(8)  procedural impropriety for failure to call for psychological and/or psychiatric reports and/or evaluations;

(9)  procedural impropriety in applying the incorrect standard of proof when there was no reasonable basis for rejecting his credibility, failure to consider the extended form of state acquiescence, failure to fully consider the COI reports in assessing risk to the applicant;

(10)  irrationality of the decision maker being a different person than the interviewing officer; and

(11)  no proper basis for consideration of internal relocation.  

17.Even leaving aside the fact that he would have been seriously late with this second application, the applicant never explained why he had not included these grounds in his earlier application before Deputy Judge Woodcock.  In any event, a close examination reveals that they are all just broad and vague assertions of his without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the adjudicator had erred in the decision, or in what way did the adjudicator fail to take into account relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case, or what relevancy was state acquiescence to his claim.

18.It is therefore in my judgment that these additional grounds would not have assisted or advanced the applicant’s claim had they been presented before Deputy Judge Woodcock, as it was clearly stated in her decision that she had found no legal error or procedural unfairness in the Board’s decision as follows:

“ 20. I do not find any ground that shows there was an error of law by the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable. In my judgment, the applicant’s claim is not reasonably arguable and there is no realistic prospect of success. …”

19.In the premises it is clearly an abuse of process for the applicant to re-litigate his case by bringing a second judicial review in respect of the same decision of the Board after he failed to obtain leave from the Court in HCAL 163/2017, and also for failing to inform the Registry of the same when he filed his Form 86 and issued his ex parte application in these proceedings, resulting in much judicial and public resources being wasted in processing these proceedings. 

20.For these reasons this second leave application for judicial review by the applicant is hereby struck out and dismissed.

Dated the 26^th day of July 2019.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1